(NOTE: This piece has also been submitted to other media outlets for publication, so frequent readers of the blog may find a few references to things they may have already read. It’s about a Supreme Court decision in a free speech case, and it’s another example of how freedom of expression often comes at a high price — the protection of words and actions most people would find objectionable. But, as one reader commented the last time I wrote about free speech, “Either we live in a free society or we don’t.”)
Rarely has there been a more sympathetic plaintiff in a case heard by the Supreme Court. And rarely has there ever been a more reprehensible “champion” of free speech.
But in deciding in favor of the right of a minister and his congregation to engage in hateful protests at the funerals of soldiers, the Supreme Court last week made a decision based on a basic American value.
By an 8-1 vote, with only Justice Samuel Alito dissenting, the court upheld a U.S. Circuit Court of Appeals reversal of a $10.9 million jury award for invasion of privacy and infliction of emotional distress to Albert Snyder. His only son was killed while serving with the U.S. Marine Corps in Iraq in 2006.
The minister, Fred W. Phelps Sr., leads a small Baptist congregation in Westboro, Kansas, in protests at military funerals, based on the notion that God is punishing America because of its tolerance for homosexuality, particularly in the Armed Services.
Signs such as “Fags Doom Nations” and “Thank God for Dead Soldiers” were among the messages aimed at those who attended Matthew Snyder’s funeral in Westminster, Md. Albert Snyder sued Phelps and his church, saying the reports of the protests made him physically ill. The court heard arguments in October and issued its opinion last Wednesday.
The court majority, while they were as sympathetic as anyone with human feelings would be to the Snyders in this case, held that even though the speech in question was outrageous and offensive, the church members’ rights to express opinions on issues of public concern took precedence. The fact that the outrageous picketing took place at a funeral didn’t remove it from First Amendment protection, said Chief Justice John Roberts, writing for the majority.
“This nation has chosen to protect even hurtful speech on public issues to ensure that public debate is not stifled,” Roberts wrote.
New York Times reporter Anthony Lewis called this idea “freedom for the thought that we hate,” in his book by the same name, subtitled “A History of the First Amendment.” And that’s the beauty of the First Amendment, that in addition to protecting speech that we agree with and find pleasing, it also protects many things which we find objectionable and with which we vehemently disagree.
Joan Bertin, executive director of the National Coalition Against Censorship, spoke about these issues on the Wingate University campus recently.
“We’re required to tolerate speech we may disagree with, and we can’t depend on the government to enforce our preferences,” she said. “If we removed everything that someone found objectionable, there wouldn’t be anything left.”
But Alito, as the lone dissenting justice in Snyder v Phelps, surely spoke for many Americans when he wrote that private individuals should have the right not to be victimized in the name of vigorous public debate on issues.
“Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case,” he wrote, saying that Phelps’ group could have made their same points protesting at many other places besides the location they staked out near the funeral site.
True, but it’s important to remember that First Amendment rights are not a zero-sum game. Granting free speech protection to groups like Phelps’ doesn’t take that same protection away from those who disagree.
In a society which says it values the open marketplace of ideas, the way to respond to an idea you don’t like is not to suppress it, but to present a better idea. Based on the Supreme Court decision, peaceful counterprotests should receive the same protection.
And it’s arguable that groups like Phelps’ might go away if the news media stopped giving them the attention they crave.
Meanwhile, the hearts of the great majority of Americans certainly go out to families like the Snyders, who have had to endure undeserved calumny even as their loved ones have made the ultimate sacrifice for their country.
Their sacrifices help preserve a greater good in the protection of our many rights, including the right of self-expression. Even if it’s used by some for purposes we despise, we should still be thankful.